25 March 2026 – ELRC631-25/26GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case no: ELRC631-25/26GP

In the matter between:

NAPTOSA obo CHILOANE NTSHANTSHA DOROTHY
(Union / Applicant)
And
GAUTENG DEPARTMENT OF EDUCATION

(Respondent)
MD RANKHUMISE
(Second Respondent)

DETAILS OF THE HEARING

The matter was heard over two sittings with the last sitting being on 24 February 2026. The Applicant, Chiloane Ntshantsha Dorothy was represented by Daniel Sekgobela, an official from trade union NAPTOSA, while the First Respondent was represented by George Mbonde, from the Respondent’s Labour Relations Department. The Second Respondent MD Rankhumise also attended the proceedings and was represented by Sadam Mnisi, a trade union official from SADTU. The proceedings were recorded digitally and in writing.
The Applicant referred to the Council an alleged unfair labour practice dispute related to promotion in terms of section 186 (2) (a) of the Labour Relations Act no 66 of 1995 (as amended) (the LRA).

ISSUE TO BE DECIDED

Whether the non-appointment of the applicant in the Principal post TW13ED1001 at Lebogang Primary School was unfair.
If an unfair labour practice is established, I must decide what constitutes an appropriate relief.

BACKGROUND

The Applicant has been employed by the Department of Education since January 1998 and currently holds the position of Deputy Principal (Post Level 3) at Lebogang Primary School.
The dispute arises from the filling of the Principal post, Post No. TW13ED1001, at Lebogang Primary School. The Applicant applied for the position but was unsuccessful. The Second Respondent was appointed to the position.
Aggrieved by the outcome, the Applicant referred an unfair labour practice dispute relating to promotion. The Applicant seeks relief in the form of setting aside the appointment of the Second Respondent.
The Second Respondent participated in the proceedings.

SUMMARY OF EVIDENCE AND SUBMISSIONS
The Applicant’s evidence

The Applicant testified that she referred an unfair labour practice dispute relating to promotion following her non-appointment to the position of Principal at Lebogang Primary School. She testified that the interview process was irregular and unfair. She stated that she was not given a fair opportunity and that other members were afforded opportunities that she was not. She testified that the interviews were conducted in May 2024 following shortlisting in April 2024. She stated that the panel comprised of SGB members and no independent members, and that Mr Moloto acted as chairperson when, according to her understanding of the South African Schools Act, the chairperson ought to have been a parent unless the panel was independent.
The Applicant testified that there was bias against her from the teacher component of the SGB and that she was informed that the teacher component did not want her to be appointed as Principal. She testified that there was interference in the shortlisting and interview process and that certain individuals, including Ms Maimane and others, influenced the process and instructed that she be scored lower. She further testified that she was informed that there was a mandate that she should not be appointed.
The Applicant testified that there were irregularities in the scoring process. She stated that scoring was done in pencil, which created the possibility that marks could be altered. She testified that the interview file was returned from the district several times for corrections and that some documents were taken home, shredded and burnt. She stated that she did not have proof that marks were altered but relied on the use of pencil as creating the possibility of manipulation. She testified that she raised concerns with the HR director, Mr Mbondi and Mr Zwane, and was advised that she could refer a dispute.
The Applicant testified that her responses during the interview were not properly recorded in the minutes and that her experience, including having acted as the Principal, was not properly captured. She further testified that there were inconsistencies in the recording of another candidate’s attendance, stating that a candidate was recorded as absent but was allocated marks.
The Applicant testified that there were discrepancies in the calculation and weighting of scores. She stated that each question was allocated ten marks, totalling seventy, but that the final scores were reflected out of one hundred and fifty, which created inconsistencies. She testified that based on her own calculations her score should have been higher. She stated that she is a mathematics teacher and has experience as a panelist and was therefore able to identify the discrepancies.
The Applicant further testified that there was a lack of confidentiality in the process and that information was leaked. She testified that she had a strained relationship with certain SGB members relating to financial management issues and refusal to sign certain documents and believed that this contributed to bias against her. She maintained that she was suitably qualified and experienced for the position and that the process was unfair.
Under cross-examination, the Applicant confirmed that nine candidates attended the interview. It was put to her that the discrepancy in the minutes relating to the name of a candidate was a typographical error, which she did not accept. She maintained that the minutes should have reflected the correct information. She conceded that she had no proof that scores were altered but maintained that the use of a pencil created the possibility of alteration. She confirmed that she raised concerns with officials and was advised to refer a dispute.
The Applicant conceded that the collective agreement does not require that the chairperson be a parent and that any SGB member may serve on the panel. She further conceded that Mr Moloto had the requisite skills to serve on the panel. She confirmed that her union was present during the interview process but stated that they did not represent her optimally. She conceded that the same scoring formula was applied to all candidates but maintained that the formula itself was incorrect. She testified that she did not know how the other candidates performed or were scored.
The Applicant’s second witness, Mr Lucas Phuti, testified that he was the treasurer of the SGB and a member of the interview panel. He testified that the panel comprised himself, Ms Kaga and Mr Moloto, with Mr Moloto acting as chairperson. He confirmed that scoring was done using a pencil on the instruction of Mr Moloto and that no reason was provided for the use of a pencil. He testified that all candidates were scored using pencils.
Mr Phuti testified that the Applicant performed well during the interview and answered all questions satisfactorily. However, he alleged that panel members were mandated to score the Applicant lower because she was not liked at the school and was not intended to be appointed. He testified that this instruction was given informally while panel members were together prior to the interviews. He stated that he raised this issue with other SGB members but no action was taken. He testified that he signed the minutes but did not properly peruse them and was unaware of any alterations.
Under cross-examination, Mr Phuti testified that he informed the Applicant of what had transpired after the appointment of the successful candidate. He confirmed that union observers were present during the interview stage but were not present when the alleged discussions took place and were therefore not aware of the alleged instruction to underscore the Applicant. He conceded that he did not report the alleged irregularities to the chairperson, the department or the union representatives. He confirmed that he had signed a confidentiality declaration and maintained that he only spoke to the Applicant after the process had been concluded.
Mr Phuti further testified that he was the only panel member who was unhappy with the process and that other panel members did not support the Applicant. He confirmed that scoring was done independently by each panel member and did not depend on how others scored. He reiterated that pencils were used during the interviews and that the instruction to score the Applicant lower was given prior to the interviews.

The Respondents’ Evidence

The Respondent’s first witness Mr Teddy Moloto testified that he was employed by the Department of Education and acted as the departmental representative representing the District Director during the interview process. He testified that he also served as chairperson of the panel. He testified that all candidates were shortlisted in accordance with prescribed criteria and denied that the Applicant was shortlisted due to any intervention on his part.
The witness denied that there was any agreement or instruction to score the Applicant lower and described such allegations as unfounded and an insult to his integrity. He testified that his role was to ensure that the process was conducted fairly and that he would not allow any undue influence. He testified that no grievances or objections were raised by union representatives during or after the process.
The witness was referred to a photograph of a pencil allegedly used during the interviews and testified that he had no knowledge of the use of a pencil and that scoring is done using pens in indelible ink. He denied any personal bias against the Applicant and testified that he had been appointed by the District Director to serve in the process.
Under cross-examination, the witness testified that he did not perform conflicting roles but was appointed as a departmental representative and thereafter served as a panel member and chairperson by agreement of the panel. He denied any alteration of the minutes and testified that handwritten minutes were recorded and signed by all panel members and that typed minutes should mirror the handwritten version. He testified that he did not sign the typed minutes but that the handwritten minutes bore the signatures of panel members.
The witness testified that any discrepancy in the recording of a candidate’s name was likely a typographical error and maintained that the possibility of alteration of the minutes was non-existent. He reiterated that no complaints were raised and denied that pencils were used, stating that he used a pen throughout the process.
The Respondent’s second witness Onika Christina Manaiwa testified that she was an educator and a member of the SGB representing the teacher component. She testified that she acted as an usher and observer during the interview process and was present to ensure that the process was properly conducted. She testified that there was no objection to her participation in the process.
The witness testified that she was aware of Mr Phuti but denied his version that there was a conspiracy to prevent the Applicant from being shortlisted or to influence the scoring against her. She testified that the Applicant met the requirements and was properly shortlisted. She denied that she had any grudge against the Applicant and stated that she had a good working relationship with her.
The witness confirmed that union observers, including a NAPTOSA representative, were present during the interviews and that no objections were raised. She denied that she altered the minutes and testified that she had only taken documents to ensure that outstanding signatures were obtained after the district raised issues regarding incomplete documentation. She denied that any documents were tampered with.
Under cross-examination, the witness testified that she was not involved in scoring and that scoring was done using pens. She testified that the school procured the stationery used during the interviews and that no pencils were purchased. She stated that she did not see any pencils being used during the process. She confirmed that SGB members received training prior to the interviews on how the process should be conducted.
The witness testified that minutes were recorded during the interviews and signed thereafter by all relevant parties. She stated that all signatures were appended in the presence of those attending and that she could identify her initials on the documents. She testified that any issues raised by the district related to administrative matters such as incomplete entries on the attendance register and not alterations of the minutes. She further testified that the panel agreed on the appointment of the chairperson and that the process was conducted properly.

ANALYSIS OF EVIDENCE AND SUBMISSIONS

This dispute concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA.
It is trite that employees do not have a right to promotion. What employees are entitled to is a fair opportunity to compete for promotion through a fair and transparent process. Promotion decisions fall within the managerial prerogative of the employer. However, that prerogative must be exercised fairly and in accordance with the principles of procedural fairness. Having had regard to the totality of the evidence before me, I am not persuaded that the Applicant has discharged the onus of proving that the Respondent committed an unfair labour practice relating to promotion.
The Applicant’s case is founded on allegations of bias, irregularity, manipulation of scores, lack of confidentiality and a predetermined outcome. These are serious allegations. They are however not self-proving. The difficulty for the Applicant is that once the evidence is carefully considered, much of her case amounts to suspicion, conjecture and dissatisfaction with the outcome rather than proof on a balance of probabilities that the process was unfair.
A difficulty with the Applicant’s version is that it is not always internally consistent. In one vein, Mr Moloto is portrayed as someone who was supportive of her and who was instrumental in ensuring that she was shortlisted. In another, he is cast as part of a scheme to ensure that she was not appointed, that he permitted the use of pencils so that marks could be manipulated, and that he failed to execute his functions properly. These versions sit uneasily with one another. More than that, on the Applicant’s own approach to the scores, it is probable that Mr Moloto may well have been the person who awarded her the highest score. If that is so, then the allegation of a coordinated effort to deliberately underscore her becomes difficult to sustain. It also leads to the rather awkward implication that even on her own version, one of the persons who may have scored her lower could well have been her own witness, Mr Phuti. That in itself materially weakens the allegation of a concerted plot.
The evidence of Mr Phuti does not, in my view, rescue the Applicant’s case. He made serious allegations, namely that there was a mandate to underscore the Applicant because she was not liked at the school and was not meant to be appointed. Yet despite the seriousness of this allegation, he did not raise it with the chairperson, did not report it to the departmental representative, did not alert the union observers and did not take any discernible step to challenge the process while it was underway. He says he raised it with SGB colleagues, but nothing came of it. He then signed the minutes without properly perusing them. He also accepted that scoring was done independently by each panelist. His evidence therefore lacks the kind of contemporaneous conduct one would expect from a person who says he witnessed a fundamentally tainted process. His complaints, viewed in their proper context, amount to unsubstantiated nigglings rather than cogent proof of unfairness.
The pencil issue was advanced as one of the central irregularities. Even if I were to accept, for purposes of argument, that a pencil was used by some panelists, that does not take the Applicant very far. The use of a pencil may create the possibility that a score could be altered, but possibility is not proof. There is no evidence before me that any score was in fact altered. The Applicant herself conceded as much. The case therefore never gets beyond suspicion. One cannot leap from “it could have happened” to “it did happen.” Commissioners are required to determine disputes on evidence, not on what might conceivably have occurred.
The allegations relating to destruction, shredding, burning and alteration of documents similarly fall short. They were advanced in broad and troubling terms, but there is no reliable evidentiary foundation showing what was altered, by whom, when, and in what way that materially impacted the outcome. The Respondent’s witnesses gave a coherent explanation that handwritten minutes were taken during the process, signed, and later typed, and that the district had returned documents for administrative corrections. The Applicant’s evidence does not establish, on a balance of probabilities, that the minutes were manipulated in a manner that rendered the process unfair.
The Applicant also placed some reliance on the composition of the panel and the role of Mr Moloto. That aspect of her case was however significantly weakened under cross-examination. She ultimately conceded that in terms of the applicable collective agreement, ELRC Collective Agreement no. 1 of 2021, the Interview Committee appoints a chairperson and it does not require the chairperson to be a parent and that any SGB member may serve on the panel. She also conceded that Mr Moloto had the requisite skills. Those concessions are material. They effectively dispose of much of the complaint regarding the alleged unlawfulness of the constitution of the panel. At that point, what remains is not an established procedural irregularity, but rather disquiet with how the process unfolded.
Another significant difficulty for the Applicant is the presence of union observers during the interviews. On the evidence before me, union representatives were present and no objection was raised during the process. No grievance was lodged contemporaneously. No concern was formally escalated at the time on the basis that the process was being manipulated or that panelists were being instructed to underscore the Applicant. The explanation that the union did not represent her optimally is, with respect, insufficient to bridge that evidentiary gap. If the irregularities were as patent and as grave as alleged, one would reasonably expect them to have been raised there and then. The absence of contemporaneous complaint weighs heavily against the Applicant’s version.
The scoring complaint also does not take the matter much further. The Applicant contended that the formula used was wrong or inconsistently applied. Yet she conceded that the same methodology was applied to all candidates. There is therefore no evidentiary basis to conclude that the Applicant alone was singled out for unfair treatment through the formula. At best for her, there may have been dissatisfaction with the scoring methodology or confusion in relation to the weighting. That does not without more establish unfair conduct in relation to promotion. A commissioner does not interfere merely because an applicant believes she ought to have scored better or because she would have preferred a different method of calculation.
I have also considered the Applicant’s evidence regarding strained relations with certain SGB members, disputes about projects, finances and governance issues at the school. It may well be that there was friction. It may also be that there were underlying tensions between her and some members of the SGB. But strained interpersonal relations do not, without proper proof, translate into a legally cognisable unfair labour practice. The Applicant still bore the onus of showing that such tensions probably translated into an unfairly manipulated promotion process. On the evidence before me, that link is not established.
By contrast, the Respondent’s witnesses presented a relatively coherent version. They denied any conspiracy, denied any instruction to underscore the Applicant, denied any use of pencils and denied any alteration of minutes. Their evidence was not entirely immune from criticism, but it was broadly consistent on the essential question, namely that the process was conducted in the ordinary course and that no objection was raised at the time. Importantly, the Applicant’s own concessions under cross-examination on the role of Mr Moloto, the constitution of the panel and the scoring methodology substantially strengthened the Respondent’s case.
In the final analysis, the Applicant has not placed before me sufficient reliable evidence to establish that the Respondent acted unfairly in relation to promotion. Her case is marked by suspicion, assumptions and grievances about aspects of the process, but those grievances do not crystallise into proof of unfair conduct. The evidence of Mr Phuti, which was meant to bolster her case, does not do so in any meaningful way. It is contradictory in effect, uncorroborated where it matters, and undermined by his own inaction. The various complaints about pencils, minutes and confidentiality remain just that complaints. They do not rise to the level of demonstrating, on a balance of probabilities, that the promotion process was unfairly manipulated or that the outcome was tainted.
The Court in Provincial Administration Western Cape (Department of Health and Social Services) v Bikwani and others (2002) 23 ILJ 761 (LC) at para 29 held that: “there is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process”. In the same vein, I would be reluctant to interfere with the Respondent’s decision based on unsubstantiated speculation.
What emerges, in truth, is an unsuccessful candidate who genuinely believes she was wronged, but belief is not enough. Dissatisfaction is not the legal test. Nor is the mere existence of irregular nigglings in a process sufficient to render that process unfair in law. The Applicant was required to show that the Respondent’s conduct was unfair, irrational or procedurally defective in a material sense. She has not done so.
I accordingly find that the Applicant has failed to prove the existence of an unfair labour practice relating to promotion and the referral is dismissed.